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A Deli Does Not a Forum Make
by Ron Davis

Shopping center owners who want to control solicitation activities on their properties now have some additional guidelines as a result of a recent court decision in Oregon.

In that case, a large retailer, Fred Meyer, Inc., sued to prohibit the soliciting of signatures at one of its store in Portland. The group conducting the solicitation, Klein Campaigns, Inc., had stationed paid workers at that store's entrance on a privately owned sidewalk, and those workers would try to sidetrack store customers to get them to sign petitions.

The Fred Meyer store is located on a 3.45-acre site and is approximately 128,000 square feet in size. It is mostly surrounded by a large parking lot, and there is no entrance to the store from a public sidewalk. The main entrance, where the Klein solicitation occurred, is from the private parking lot on the premises.

The store offers a wide variety of consumer items. The average weekly transaction count at the store is between 35,000 and 40,000. And inside the building is a delicatessen, where customers can sit at tables if they have purchased beverages or food from Fred Meyer. But the store has no public meeting place, no auditorium, no skating rink, no movie theaters, no gardens, and no picnic areas.

Although a bulletin board is located in a corridor leading to the store's restrooms at the back of the building, there is no evidence that Fred Meyer has invited the public to the store to be entertained, to engage in public discussions, or to hear political speeches. Nor does the company permit political candidates to campaign at that store.

Once a year, however, it does allow Salvation Army representatives to stand by the main entrance for solicitation of charitable donations.

In arguing for its right to solicit at the Fred Meyer store, Klein made three points:

(1) There is a bulletin board on the premises.

(2) There is a delicatessen on the premises.

(3) The Salvation Army is allowed to stand by the entrance and solicit money during the holiday season.

Therefore, Klein adds, the store is a public forum, which, based on the Oregon Supreme Court's constitutional rulings, must allow public assembly and solicitation.

The Oregon Court of Appeals ruled in favor of Fred Meyer, however, explaining, "There is uncontradicted evidence that Fred Meyer has neither expressly nor implicitly invited the public to treat any portion of the Portland store as a forum for noncommercial public assembly. The scope of its invitation to the public is to buy its products only, not to congregate on the premises to debate matters of public concern. Klein therefore does not have a constitutional right to solicit initiative petition signatures on the premises." (Fred Meyer, Inc. v. Klein Campaigns, Inc., 5 P.3d 1194 [Or.App. 2000])

Decision: July 2000
Published: September 2000



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